Are You Contesting or Defending a Last Will? Then Consider These Suspicious Circumstances

Challenging a person’s last will successfully is becoming more difficult. This is based on my review of recent Ontario court decisions. Signs of dementia by the will maker do not automatically mean the will is invalid. Courts must uphold a person’s testamentary freedom to make their wills.

Contesting or defending wills is a specialized area of law. There are many confusing grounds to contest wills. Estate laws are complicated. Evidence to contest wills must be admissible in court.

Mere allegations by persons contesting a last will do not prove a lack of testamentary capacity (TC). Read my blog post about TC. Courts can, however, investigate if suspicious circumstances exist.

Justice L. Shaw in Krolewski v. Moniz, in a decision released in 2020, [2020 ONSC 53 (Ont. S.C.J.)] reviewed the law on suspicious circumstances in will cases:

Suspicious circumstances may be raised by: (1) circumstances surrounding the preparation of the Will; (2) circumstances tending to call into question the capacity of the testator; or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud…

Wills and Suspicious Circumstances

The Ontario judge continued to quote this passage from another Ontario decision:

[71] In determining whether there are suspicious circumstances, the court may consider the following factors:
i. The extent of physical and mental impairment of the testator around the time the Will was signed;
ii. Whether the Will in question constitutes a significant change from the former Will;
iii. Whether the Will in question generally seems to make
testamentary sense;
iv. The factual circumstances surrounding the execution of the Will; and
v. Whether any beneficiary was instrumental in the preparation of the Will.
(Royal Trust Corporation of Canada v. Saunders, 2006 CanLII 19424 (Ont. S.C.), at para. 78.)

Suspicious circumstances may raise questions that must be answered. These facts can shift the burden of proof in contested will cases. Suspicious circumstances may open the door but they are not grounds to set aside a will. There must be evidence to show a lack of testamentary capacity for a judge to invalidate a will.

Are you considering contesting a will?

Check out my blog post on testamentary capacity.

You need to understand what losing your will contest can cost you.

Don’t let your anger drive you to make an unwise decision.

You can get an opinion by booking an appointment with me.

Are you defending a last will?

I can help you.

Estate law is all I do.

Contact me.